Businesses seek right not to advertise Supreme Court hears challenge to program for fruit growers

NEW YORK TIMES NEWS SERVICETHE BALTIMORE SUN

WASHINGTON -- It is settled ground at the Supreme Court that businesses have a First Amendment right, within limits, to advertise their products. An unusual free-speech case argued before the court yesterday presented the justices with the other side of the advertising coin: whether businesses have a constitutional right to decline to participate in a government-required advertising program intended to bolster the health of an entire industry.

Under an agricultural marketing law from the New Deal era, the federal government requires companies that pack and ship a variety of products to contribute to industrywide, generic advertising campaigns that urge consumers, for example, to "buy California peaches."

In the late 1980s, a group of handlers of California peaches, nectarines and plums, claiming a First Amendment right not to engage in government-compelled speech, refused to pay the fees the Department of Agriculture assesses for the program and filed a lawsuit instead. The assessments, based on a charge for each carton of produce marketed, can run to a half-million dollars or more for a big farm and generate more than $10 million a year for advertising the California produce at issue in this case.

In a decision last year, the 9th U.S. Circuit Court of Appeals, in San Francisco, ruled that the assessments were unconstitutional. The Clinton administration appealed to the Supreme Court.

During the argument yesterday, it was evident that the justices were troubled by aspects of the mandatory advertising program, but that they were also not about to declare it unconstitutional lightly. While the court in general has become more sympathetic recent years to granting strong constitutional protection for commercial speech, the justices remain divided on how to approach such cases as a matter of First Amendment doctrine. They are also clearly aware that anything the court says in the commercial speech area will become constitutional ammunition in the coming battle over regulating cigarette advertising.

Arguing for the government, Alan Jenkins, an assistant solicitor general, urged the court to view the advertising assessments much as the court's precedents have treated compulsory union dues for workers and bar membership for lawyers. The court has held that dues may be required, without violating the First Amendment, even from members who object to particular uses to which the dues are put, as long as the requirement serves an important government interest, such as maintaining a peaceful workplace.

Several justices questioned Jenkins about the validity of the government's interest in generic advertising, as opposed to permitting the growers to take the money and spend it on advertising their own products. The producers are free to engage in additional advertising, but some argue that they have no advertising budget left after paying the government assessments.

The second half of the hourlong argument in Glickman vs. Wileman Bros., No. 95-1184, took a different turn. Thomas Campagne, a lawyer from Fresno, Calif., representing the fruit handlers, failed to exploit the numerous openings the government's argument had made for him. Instead, he resisted the justices' invitations to present a coherent First Amendment theory and kept returning to the details of the fruit business, ignoring warnings that he was turning his constitutional challenge into a mundane administrative-law case in which the court had little reason to be interested.

"A peach is not a peach, and a plum is not a plum," Campagne said. His point was that individual growers of proprietary varieties like Red Jim nectarines or Ebony plums were harmed when forced to spend their advertising dollars on generic promotions.

In another commercial speech case yesterday, the court turned down a First Amendment challenge to a California law that effectively bans the use of a telemarketing tool that dials telephone numbers automatically to deliver a recorded message.